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Canada: Not cut out for polygamy

With Canada scrapping the traditional definition of marriage to allow same-sex marriage, it is understandable that some people are now arguing that it is time to legally recognize polygamy.

The recent Supreme Court ruling that private acts of group sex are not criminal may appear to strengthen these arguments.

But same-sex marriage and polygamy are very different. And group sex between consenting adults is very different from a polygamous family with children.

In a recently released, federally funded study, professors Martha Bailey, Beverley Baines and Bita Amani at Queen's University advocated the decriminalization of polygamy and urged that Canada allow immigration by polygamous families. They also argued that Canada's current polygamy laws could be unconstitutional.

Understandably, in the midst of an election campaign where same-sex marriage and the use of the notwithstanding clause are issues, the media have focused on that controversial study. It was, however, only one of four studies sponsored by the Status of Women Canada. The other three studies (one co-authored by this writer), largely ignored by the media, offered very different recommendations.

First, it's important to recognize that the Bailey study is limited; it focuses on how Canada should deal with those who might emigrate from countries where polygamous marriages can be legally celebrated, and the study gives little attention to children. But the issue of polygamy here in Canadian society is a complex one, as we have to deal with a growing number of North American fundamentalist Mormon polygamists, as well with potential immigrant polygamists. As well, it is vital to consider the effects of polygamy on children, as well as on adults.

Polygamy served useful functions in primitive societies where large numbers of men were killed in battle, and where woman and children without a husband or father were at risk of starvation. In modern societies, polygamy is very problematic. Many countries that allowed polygamy are now limiting this practice. Even some Muslim countries, such as Tunisia, have abolished polygamy (the Koran allows for polygamy but does not require its practice).

Several European countries are facing problems with large immigrant polygamous populations, and are now prohibiting this type of immigration. Such families tend to be plagued by spouse abuse, poverty and fathers who are not involved in the care of their children. Decriminalization could attract troubled polygamous families to Canada.

Polygamy is exploitive of women, and is associated with high rates of spousal abuse. Rivalry is common between multiple wives, as each competes for affection and resources for herself and her children. The practice of polygamy is clearly contrary to the principle of gender equality that is fundamental to Canadian society. Polygamy also has significant negative effects on children, in large part because fathers are often distant figures. Children of polygamous unions are more likely to be abused, and -- compared to children from monogamous families -- they tend to have more emotional difficulties and lower educational achievement.

In fundamentalist Mormon communities, young women and adolescent girls are often coerced into polygamous unions. Older boys can also be harmed by polygamy, as they are often expelled from their communities and their families so that they will not compete with powerful males for wives. Finally, polygamy also imposes economic costs on society: Polygamous families are often unable to support their many children and resort to social assistance.

The Criminal Code prohibition on cohabitation in a polygamous union serves important practical and symbolic functions, signalling that Canada does not condone marital unions that are inherently unequal and potentially harmful to children. The fact that polygamy is a crime also permits prohibitions on immigration by polygamous families.

But even as we seek to end the practice of polygamy in Canada, we must be sensitive to the needs of women coerced into these relationships and to the vulnerabilities of their children. Prosecutions should only be against those men who have coerced women to enter polygamous unions. There should also be limited legal rights for those who lived in polygamous unions, for example, for such purposes as child support.

The argument for same-sex marriage was based on the promotion of equality, and was premised on research establishing that children raised by same-sex couples do as well as children born to heterosexual parents. By contrast, polygamy treats women as inherently unequal, and is associated with the exploitation, abuse and neglect of kids. The harms associated with polygamy both justify current laws and strongly support the argument for their constitutionally validity.

Nicholas Bala is a professor of law at Queen's University. Together with researchers at the Canadian Research Institute for Law and the Family, he wrote one of the recently released studies on polygamy commissioned by Status of Women Canada.